An Act To Amend The Code Of Corporations As A Result Of Directive 2009/109/ec As Regards Reporting And Documentation In The Case Of Mergers And Divisions (1) Obligations

Original Language Title: Loi modifiant le Code des sociétés à la suite de la Directive 2009/109/CE en ce qui concerne les obligations en matière de rapports et de documentation en cas de fusions ou de scissions (1)

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Posted the: 2012-01-18 Numac: 2012009010 FEDERAL JUSTICE PUBLIC SERVICE January 8, 2012. -Act to amend the Code of corporations as a result of the Directive 2009/109/EC with regard to the obligations for reporting and documentation in the case of mergers and divisions (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Provisions General Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
S. 2. this law transposes inter alia Directive 2009/109/EC of the European Parliament and of the Council of 16 September 2009 amending Directives 77/91 / EEC, 78/855/EEC and 82/891/EEC of the Council and directive 2005/56/EC as regards reporting and documentation in the event of mergers or demergers obligations.
CHAPTER 2. -Assignment forced securities art. 3. in article 513 of the Code of companies, as last amended by the law of April 1, 2007, inserted § 2/1 as follows: § 2/1. When the takeover bid occurs for a merger by absorption made by a company that does not all but at least 90% of the shares and other securities conferring the right to vote in the General Assembly in the absorbed company, the percentage referred to the § 1, paragraph 1, and § 2, paragraph 1, shall be 90%.
The owner may indicate that it does not want to renounce his titles. ».
CHAPTER 3. -Merger by absorption s. 4. in article 693 of the same Code, the last subparagraph is replaced by the following: "Six weeks at least before the general meeting called upon to decide on the merger, the project of fusion must be filed by each of the companies called to merge at the registry of the commercial court of the place of establishment of its headquarters respective and published or extract pursuant to section 74 or by reference in accordance with article 75. which contains a hypertext link to own website. ».
S. 5. article 694 of the same Code is supplemented by a paragraph worded as follows: "the report referred to in paragraph 1 is not required if all the shareholders and holders of other securities conferring the right to vote of each of the companies involved in the merger have decided so.".
S. 6a article 695 of the Code, last amended by article 54 of the law of December 30, 2009, the following amendments are made: 1 ° the current text will form the § 1;
2 ° article 6 is repealed;
3 ° in paragraph 7, becoming paragraph 6, the words "a statement on the merger proposal or a report of the Commissioner, auditor of enterprises or the appointed external auditor are required» are replaced by the words"this paragraph does not apply"and the word"shareholders"is replaced by the word"related ".
4 ° article is supplemented by a paragraph 2, as follows: ' ' § § 2 2 If a report has been prepared in accordance with the § 1 sections 313, 423 or 602 do not apply to an acquiring company having the form of Société privée à responsabilité limitée Société Coopérative à responsabilité limitée, European society, European or company cooperative society. ».
S. 7. article 696 of the Code is supplemented by a paragraph worded as follows: "the information referred to in paragraph 1 is not required if all the shareholders and holders of other securities conferring the right to vote of each of the companies involved in the merger have decided so.".
S. 8. at article 697 of the Code, last amended by article 13 of the royal decree of November 28, 2006, the following changes are made: 1 ° in § 2, paragraph 1, 2 °, the words "as appropriate" are inserted at the beginning of the sentence;
2 ° in the § 2, paragraph 1, 5 °, the words "where appropriate," are inserted at the beginning of the sentence;
3 ° § 2 is supplemented by two paragraphs worded as follows: "no accounting statement is required if the company publishes a semi-annual financial report referred to in article 13 of the royal decree of 14 November 2007 on the obligations of issuers of financial instruments admitted to trading on a regulated market and puts it in accordance with this paragraph, at the disposal of the shareholders.
No accounting statement is required if all the shareholders and holders of other securities conferring the right to vote at the general meeting of each of the companies involved in the merger have so decided. »;
4 ° § 3 is supplemented by a paragraph worded as follows: 'If a partner has accepted individually, expressly and in writing that the company provide the documents referred to in §§ 1 and 2 electronically, such copies may be sent by e-mail.';
5 ° article is supplemented by a § 4 worded as follows: ' ' § § 4 4 If a company offers free on its Web site the documents referred to in § 2 for an uninterrupted period of one month beginning before the date of the general meeting called to decide on the draft terms of merger and not ending before the end of this Assembly, it does not make available the documents referred to in § 2 at its headquarters.
§ 3 is not applicable if the website offers the possibility to the partners, throughout the period referred to in § 2, download and print the documents referred to in § 2. In such cases, the company provides these documents at its headquarters so that they can be consulted by the partners.
The information must remain on the website until a month after the decision of the general meeting called to decide on the merger. ».
S. 9. article 699 of the Code is supplemented by § 6 worded as follows: ' ' § § 6 6 Where a company holds at least 90% but not the totality of shares and other securities conferring the right to vote at the General Assembly of the absorbed company, approval of the merger by the general meeting of the acquiring company, provided for in the preceding paragraphs is not required where the following conditions are fulfilled: 1 ° advertising of the merger referred to in article 693 project is carried out , for the acquiring company, at the latest six weeks before the date of the meeting of the General Assembly of the companies being acquired called to decide on the draft terms of merger;
2 ° without prejudice to article 697, each shareholder of the acquiring company has the right, one month prior to the above date to the 1 °, aware of the documents referred to in article 697, § 2, at the registered office of the company.
In this case one or more shareholders of the acquiring company who hold shares representing 5% of the subscribed capital have the right to obtain the convening of the general meeting of the acquiring company be called to decide on the draft terms of merger. Non-voting shares are not taken into account in the calculation of this percentage. ».
CHAPTER 4. -Merger by formation of a new company s. 10. to the § 3 of article 705 of the Code, as last amended by article 14 of the royal decree of November 28, 2006, the following changes are made: 1 ° in the paragraph 1, the words 'articles 444' are replaced by the words «if a report is submitted pursuant to section 708, 444 articles»
2 ° in the paragraph 1, the sentence "articles 395, 399-402, 2 °, do not apply to the limited liability cooperative company and European cooperative society derived from the merger" is repealed;
3 ° a paragraph worded as follows is inserted between paragraphs 1 and 2: "If a report has been established in accordance with article 708, articles 395, 399, 402, 2 °, do not apply to the Société Coopérative à responsabilité limitée and the cooperative society European derived from the merger."
4 ° in the 2 paragraph becoming paragraph 3, the word "Them" is replaced by the words "If a report has been prepared pursuant to section 708, the.
S. 11. in article 706 of the same Code, the last subparagraph is replaced by the following: "Six weeks at least before the general meeting called upon to decide on the merger, the project of fusion must be filed by each of the companies called to merge at the registry of the commercial court of the place of establishment of its headquarters respective and published or extract pursuant to section 74 or by reference in accordance with article 75. which contains a hypertext link to own website. ».
S. 12. article 707 of the same Code is supplemented by a paragraph as follows: "the report referred to in paragraph 1 is not required if all the shareholders and holders of other securities conferring the right to vote of each of the companies involved in the merger have decided so.".
S. 13A article 708, paragraph 6, of the same Code, as last amended by article 55 of the law of December 30, 2009, the words "a statement on the merger proposal or a report of the Commissioner, auditor of enterprises or the appointed external auditor are required" are replaced by the words "this article does not apply" and the word "shareholders" is replaced by the word "related".
S. 14. article 709 of the Code is supplemented by a paragraph worded as follows: "the information referred to in paragraph 1 is not required if all the shareholders and holders of other securities conferring the right to vote of each of the companies involved in the merger have decided so.".
S. 15A article 710 of the same Code, last amended by article 15 of the royal decree of November 28, 2006, the following changes are made: 1 ° in the § 2, paragraph 1, 2 °, the words

«where appropriate» shall be inserted at the beginning of the sentence;
2 ° in the § 2, paragraph 1, 5 °, the words "where appropriate," are inserted at the beginning of the sentence;
3 ° § 2 is supplemented by two paragraphs worded as follows: "no accounting statement is required if the company publishes a semi-annual financial report referred to in article 13 of the royal decree of 14 November 2007 on the obligations of issuers of financial instruments admitted to trading on a regulated market and puts it in accordance with this paragraph, at the disposal of the shareholders.
No accounting statement is required if all the shareholders and holders of other securities conferring the right to vote at the general meeting of each of the companies involved in the merger have so decided. »;
4 ° § 3 is supplemented by a paragraph worded as follows: "If a partner is individually, expressly and by accepted written the company to provide the information referred to in §§ 1 and 2 electronically, such copies may be sent by e-mail.
»;
5 ° article is supplemented by a § 4 worded as follows: ' ' § § 4 4
If a company offers free on its Web site the documents referred to in § 2 for an uninterrupted period of one month beginning before the date of the general meeting called to decide on the draft terms of merger and not ending before the end of this Assembly, it does not make available the documents referred to in § 2 at its headquarters.
§ 3 is not applicable if the website offers the possibility to the partners, throughout the period referred to in § 2, download and print the documents referred to in § 2. In such cases, the company provides these documents at its headquarters so that they can be consulted by the partners.
The information must remain on the website until a month after the decision of the general meeting called to decide on the merger. ».
CHAPTER 5. -Operations assimilated to mergers by absorption s. 16. in article 719 of the same Code, the last subparagraph is replaced by the following: "Six weeks at least before the general meeting called upon to decide on the merger, the project of fusion must be filed by each of the companies called to merge at the registry of the commercial court of the place of establishment of its headquarters respective and published or extract pursuant to section 74 or by reference in accordance with article 75. which contains a hypertext link to own website. » Art. 17. at article 720 of the Code, last amended by article 16 of the royal decree of November 28, 2006, the following changes are made: 1 ° in § 2, paragraph 1, 4 °, the words "as appropriate" are inserted at the beginning of the sentence;
2 ° § 2 is supplemented by a paragraph worded as follows: "no accounting statement is required if the company publishes a semi-annual financial report referred to in article 13 of the royal decree of 14 November 2007 on the obligations of issuers of financial instruments admitted to trading on a regulated market and puts it in accordance with this paragraph, at the disposal of the shareholders.
No accounting statement is required if all the shareholders and holders of other securities conferring the right to vote at the general meeting of each of the companies involved in the merger have decided so. »;
3 ° § 3 is supplemented by a paragraph worded as follows: 'If a partner has accepted individually, expressly and in writing that the company provide the documents referred to in §§ 1 and 2 electronically, such copies may be sent by e-mail.';
4 ° article is supplemented by a § 4 worded as follows: ' ' § § 4 4 If a company offers free on its Web site the documents referred to in § 2 for an uninterrupted period of one month beginning before the date of the general meeting called to decide on the draft terms of merger and not ending before the end of this Assembly, it does not make available the documents referred to in § 2 at its headquarters.
§ 3 is not applicable if the website offers the possibility to the partners, throughout the period referred to in § 2, download and print the documents referred to in § 2. In such cases, the company provides these documents at its headquarters so that they can be consulted by the partners.
The information must remain on the website until a month after the decision of the general meeting called to decide on the merger. ».
S. 18. article 722 of the Code is supplemented by § 6 worded as follows: ' ' § § 6 6 The approval by the General Assembly of the Société anonyme, laid down in the preceding paragraphs, is not required if the following conditions are fulfilled: 1 ° the advertising of the draft terms of merger mentioned in article 719 is performed for each of the companies involved in the operation no later than six weeks before the taking effect of absorption;
2 ° without prejudice to article 720, each shareholder of the acquiring company has the right, one month prior to the taking effect of the absorption, aware of the documents mentioned in section 720, § 2, at the registered office of the company;
3 ° one or more shareholders of the acquiring company who hold shares representing 5% of the subscribed capital have the right to convene the general meeting of the acquiring company be called to decide on the draft terms of merger. Non-voting shares are not taken into account in the calculation of this percentage. ».
CHAPTER 6. -Division by acquisition article 19. in article 728 of the same Code, the last subparagraph is replaced by the following: "Six weeks at least before the general meeting called upon to decide on the split, the draft terms of Division must be filed by each of the companies involved in the Division at the registry of the commercial court of the place of establishment of its headquarters respective and published by extract in accordance with article 74 or by reference in accordance with article 75 which contains a hypertext link to own website. » Art. 20. in article 730 of the same Code, as amended by article 17 of the royal decree of 28 November 2006, the last paragraph is repealed.
S. 21A article 731 of the same Code, last amended by article 56 of the law of December 30, 2009, the following amendments are made: 1 ° the current text will form the § 1;
2 ° article 6 is repealed;
3 ° in paragraph 7, becoming paragraph 6, the words "a statement on the draft terms of Division or a Commissioner's report, business or designated external accountant auditor are required" are replaced by the words "this paragraph does not apply" and the word "shareholders" is replaced by the word "related".
4 ° article is supplemented by a § 2 worded as follows: ' ' § § 2 2 If a report has been prepared in accordance with the § 1 sections 313, 423 or 602 do not apply to an acquiring company having the form of Société privée à responsabilité limitée Société Coopérative à responsabilité limitée, European society, European or company cooperative society. ».
S. 22. at article 733 of the same Code, last amended by article 19 of the royal decree of November 28, 2006, the following changes are made: 1 ° in § 2, paragraph 1, 2 °, the words "as appropriate" are inserted at the beginning of the sentence;
2 ° in the § 2, paragraph 1, 5 °, the words "where appropriate," are inserted at the beginning of the sentence;
3 ° § 2 is supplemented by a paragraph worded as follows: "no accounting statement is required if the company publishes a semi-annual financial report referred to in article 13 of the royal decree of 14 November 2007 on the obligations of issuers of financial instruments admitted to trading on a regulated market and puts it in accordance with this paragraph, at the disposal of the shareholders.";
4 ° § 3 is supplemented by a paragraph worded as follows: 'If a partner has accepted individually, expressly and in writing that the company provide the documents referred to in §§ 1 and 2 electronically, such copies may be sent by e-mail.';
5 ° article is supplemented by a § 4 worded as follows: ' ' § § 4 4 If a company offers free on its Web site the documents referred to in § 2 for an uninterrupted period of one month beginning before the date of the general meeting called to decide on the draft terms of Division and not ending before the end of this Assembly, it does not make available the documents referred to in § 2 at its headquarters.
§ 3 is not applicable if the website offers the possibility to the partners, throughout the period referred to in § 2, download and print the documents referred to in § 2. In such cases, the company provides these documents at its headquarters so that they can be consulted by the partners.
The information must remain on the website until a month after the decision of the general meeting called to decide upon the Division.
».
S. 23A article 734 of the Code, the words ', 731"are repealed.
S. 24 section 736 of the same Code, the following changes are made: 1 ° in the Dutch text of § 2, the word «fusie» is replaced by «AAA.540.991.21»
2 ° article is supplemented by a § 6 worded as follows: ' ' § § 6 6 The General Assembly of the company being divided shall not give approval if the recipient companies hold together all shares or shares of the company being divided and all other securities conferring the right to vote at the General Assembly of the company being divided and the following conditions are fulfilled: 1 °

the deposit prescribed in article 728 takes place for each of the companies involved in the Division six weeks at least before the taking effect of the demerger;
2 ° each shareholder of the companies involved in the Division has the right, one month at least before the taking effect of the demerger, aware of the documents mentioned in article 733, § 2, at the registered office of the company. For the rest, article 731, § 1, last paragraph, and article 733, §§ 2, 3 and 4, shall apply;
3 ° the information referred to in article 732 concerns all changes to the active and passive heritage since the date on which the draft terms of Division was established. ».
CHAPTER 7. -Division by the incorporation of new companies art. 25. in the third paragraph of article 742 of the Code, as last amended by section 20 of the royal decree of November 28, 2006, the following changes are made: 1 ° to the paragraph 1, the words 'Articles 444, last paragraph,' are replaced by the words "If a report is submitted in accordance with article 746, 444 articles ';
2 ° in the same paragraph, the first sentence is supplemented by the words "which are derived from the split."
3 ° in the same paragraph, the phrase "articles 395, last paragraph, and 399 do not apply to the limited liability cooperative company and European cooperative society derived from the split" is repealed;
4 ° a paragraph worded as follows is inserted between paragraphs 1 and 2: 'If a report has been prepared in accordance with article 746, articles 395 and 399 does not apply to the cooperative limited liability company and the European cooperative society derived from split.';
5 ° to the paragraph 2 becoming paragraph 3, the words 'Articles 219, last paragraph', are replaced by the words "If a report has been prepared in accordance with article 746, articles 219".
S. 26. in article 743 of the Code, the last subparagraph is replaced by the following: "Six weeks at least before the general meeting called upon to decide on the split, the draft terms of Division must be filed by each of the companies involved in the Division at the registry of the commercial court of the place of establishment of its headquarters respective and published by extract in accordance with article 74 or by reference in accordance with article 75 which contains a hypertext link to own website. ».
S. 27. in section 745 of the same Code, as last amended by article 21 of the royal decree of 28 November 2006, the last subparagraph is replaced by the following: "this article is not applicable where the shares or the shares of each of the new companies are allocated to the shareholders of the company split proportionally to their rights in the capital of this company.".
S. 28 A section 746 of the same Code, last amended by article 57 of the law of December 30, 2009, the following amendments are made: 1 ° paragraph 6 is repealed.
2 ° in paragraph 7, becoming paragraph 6, the words "a statement on the draft terms of Division or a Commissioner's report, business or designated external accountant auditor are required" are replaced by the words "this article does not apply" and the word "shareholders" is replaced by the word "related".
3 ° article is supplemented by a paragraph worded as follows: "this article is not applicable where the shares or the shares of each of the new companies are allocated to the shareholders of the company split proportionally to their rights in the capital of this company.".
S. 29. article 747 of the same Code is supplemented by a paragraph worded as follows: "this article is not applicable where the shares or the shares of each of the new companies are allocated to the shareholders of the company split proportionally to their rights in the capital of this company.".
S. 30A article 748 of the Code, last amended by article 23 of the royal decree of November 28, 2006, the following changes are made: 1 ° in § 2, paragraph 1, 2 °, the words "as appropriate" are inserted at the beginning of the sentence;
2 ° in the § 2, paragraph 1, 5 °, the words "where appropriate," are inserted at the beginning of the sentence;
3 ° § 2 is supplemented by two paragraphs worded as follows: "no accounting statement is required if the company publishes a semi-annual financial report referred to in article 13 of the royal decree of 14 November 2007 on the obligations of issuers of financial instruments admitted to trading on a regulated market and puts it in accordance with this paragraph, at the disposal of the shareholders.
2 ° and 5 ° are not implementing where the shares or the shares of each of the new companies are allocated to the shareholders of the company split proportionally to their rights in the capital of this company. »;
4 ° § 3 is supplemented by a paragraph worded as follows: 'If a partner has accepted individually, expressly and in writing that the company provide the documents referred to in §§ 1 and 2 electronically, such copies may be sent by e-mail.';
5 ° article is supplemented by a § 4 worded as follows: ' ' § § 4 4 If a company offers free on its Web site the documents referred to in § 2 for an uninterrupted period of one month beginning before the date of the general meeting called to decide on the draft terms of Division and not ending before the end of this Assembly, it does not make available the documents referred to in § 2 at its headquarters.
§ 3 is not applicable if the website offers the possibility to the partners, throughout the period referred to in § 2, download and print the documents referred to in § 2. In such cases, the company provides these documents at its headquarters so that they can be consulted by the partners.
The information must remain on the website until a month after the decision of the general meeting called to decide upon the Division. ».
S. 31 A section 749, paragraph 1, of the Code, the words ', 746"are repealed.
CHAPTER 8.
-Mergers cross-border art. 32A article 772/7, paragraph 1, of the same Code, inserted by article 77 of the Act of June 8, 2008, the following changes are made: 1 ° the word "respective", is inserted between the words "registered office" and the words ", by each company."
2 ° «by extract in accordance with article 74» shall be replaced by the words "or extract pursuant to section 74 or by reference in accordance with article 75, which includes a hyperlink to an own website.".
CHAPTER 9. -Disposition transitional art.
33. this Act applies to mergers or demergers which project is placed in the registry after the entry into force of this Act.
Given in Brussels, January 8, 2012.
ALBERT by the King: the Minister of Justice, Ms. A. TURTELBOOM sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Note (1) Session 2011-2012.
House of representatives.
Documents. -Bill, 53-1849-001.
-Amendments 53-1849-002. -Report, 53-1849-003. -Text adopted by the commission, 53-1849-004. -Text adopted in plenary meeting and transmitted to the Senate, 53-1849-005.
Compte rendu intégral. -1st December 2011.
Senate Documents. -Project not mentioned by the Senate, 5-1375-1.

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